Jo v. JPMC Specialty Mortg., LLC

131 F.Supp.3d 53

Billian JO, as Personal Representative of the Estate of Mee Jin–Jo, Plaintiff,

v.JPMC SPECIALTY MORTGAGE, LLC, Defendant.

JPMC Specialty Mortgage, LLC, Third–Party Plaintiff,

v.Advanced Moving & Storage, LLC, Third–Party Defendant.

No. 1:08–CV–00230 EAW.

United States District Court, W.D. New York.

Signed Sept. 22, 2015.

Billian Jo, Ferndale, MI, pro se.

Kenneth J. Flickinger, Eckert Seamans Cherin & Mellott, LLC, White Plains, NY, for Third–Party Plaintiff and Defendant.

Gerald N. Murphy, Forsyth, Howe, O'Dwyer, Kalb & Murphy, P.C., Rochester, NY, Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

INTRODUCTION

Pro se Plaintiff Mee Jin–Jo ("Plaintiff"), now deceased and represented in this action by her personal representative Billian Jo, commenced this lawsuit on March 18, 2008, alleging that Defendant improperly retained control over her property after she was evicted as a no-fault tenant from her residence. (Dkt. 1). Plaintiff asserts claims of violation of New York's Truth–in–Storage Act, conversion, and intentional torts.

This case was initially assigned to the Hon. Richard J. Arcara, United States District Judge. On August 5, 2009, Judge Arcara entered an order referring this matter to the Hon. Jeremiah J. McCarthy, United States Magistrate Judge, for hearing and disposition of all non-dispositive motions or applications, supervision of discovery, and to hear and report upon dispositive motions. (Dkt. 68).

Defendant filed a motion for summary judgment on October 16, 2012. (Dkt. 235). Plaintiff opposed the motion. (Dkt. 240). On August 13, 2013, Judge McCarthy issued a Report and Recommendation recommending denial of summary judgment with respect to Plaintiff's remaining claims² for alleged violation of the New York Truth–in–Storage Act, conversion, and intentional torts. (Dkt. 247).

On September 13, 2013, Defendant filed objections to the Report and Recommendation. (Dkt. 250). Defendant contends that it cannot be held liable for the actions of Advanced Moving & Storage, LLC ("Advanced") because Advanced was an independent contractor. (Dkt. 250–2 at 2).

This case was transferred to the undersigned on January 30, 2015. (Dkt. 275).

For the reasons set forth below, the Court adopts the Report and Recommendation in full. Defendant's motion for summary judgment (Dkt. 235) is denied in its entirety.

BACKGROUND

The factual and procedural background of this case is set forth in detail in the Report and Recommendation. (See Dkt. 247 at 1–6). Familiarity with the Report and Recommendation is assumed for purposes of this Decision and Order.

DISCUSSION

I. Standard of Review

"Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made." Crowe v. Leroy Cent. Sch. Dist., 949 F.Supp.2d 435, 438 (W.D.N.Y.2013). The Court must therefore consider de novo whether Defendants are entitled to summary judgment with respect to Plaintiff's Truth–in–Storage Act, conversion, and intentional tort claims. "The Court reviews unobjected-to findings for clear error." Am. Ins. Co. v. City of Jamestown, 914 F.Supp.2d 377, 384 (W.D.N.Y.2012).

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Rule 56"mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

Once the moving party has met its burden, the opposing party " ‘must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. ’ " Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec., 475 U.S. at 586–87, 106 S.Ct. 1348 ) (emphasis in original). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).

II. Truth–in–Storage Act Claim

New York's Truth–in–Storage Act provides: "[a]ny consumer bailor damaged by an unlawful detention of his goods or any other violation of this article may bring an action for recovery of damages and the return of his goods." N.Y. Gen. Bus. Law § 609(1).

A. Defendant May be Held Vicariously Liable for Advanced's Unlawful Detention of Plaintiff's Goods

Plaintiff argues that Defendant is responsible for Advanced's unlawful detention of her personal property, insofar as Advanced would not release Plaintiff's property without requiring a fee, and had not listed numerous items of Plaintiff's property on its inventory list, suggesting that the items were lost or stolen. (Dkt. 241 at 13–14, 21–23). Defendant's primary objection is that it may not be held liable for the actions or inactions of Advanced, an independent contractor. (Dkt. 250–2 at 8–9).

"[I]t has been clear in New York that a marshal has the right to remove a tenant's property of value still left in an apartment more than 72 hours after the tenant has been served with a warrant of eviction. If such property is removed by the marshal at the landlord's request or by the landlord, the landlord is responsible for the cost of storing the property for a reasonable period until it is claimed by the tenant." Wilson v. CRL Mgm't, Inc., 14 Misc.3d 231, 232–33, 829 N.Y.S.2d 424 (Rochester City Ct.2006). Not only is the landlord responsible for the cost of storage, but the landlord is required to "safeguard or store items of value left in the leased premises at the time of the execution of the warrant of eviction." Id.; see Young v. Warehouse No. 2 Inc., 143 Misc.2d 350, 352, 540 N.Y.S.2d 654 (N.Y.Civ.Ct.1989) (where evicted tenant's property stored by landlord and city marshal at warehouse, landlord rather than tenant must pay for storage).

Defendant had a duty to safeguard Plaintiff's property and hired Advanced to carry out the moving and storage of Plaintiff's property. "[S]ince the landlord hired the moving company, it becomes the agent of the landlord, who is thus responsible for such party's improper removal of plaintiff's property." Marcado v. Weinheim, 108 Misc.2d 81, 84, 436 N.Y.S.2d 973 (N.Y.Civ.Ct.1981).

Defendant contends that it did not have an agency relationship with Advanced because Advanced was an independent contractor. However, even if Advanced is considered to be an independent contractor, Defendant may be liable for the alleged negligent hiring and/or supervising of Advanced when it executed the removal and storage of Plaintiff's property.

"As a general rule, a principal is not liable for the acts of an independent contractor because, unlike the master-servant relationship, principals cannot control the manner in which independent contractors perform their work." Saini v. Tonju Assoc., 299 A.D.2d 244, 245, 750 N.Y.S.2d 55 (1st Dep't 2002). However, "a party may be held liable for a contractor's negligence under theories of negligent hiring, negligent retention, and negligent supervision." Bellere v. Gerics, 304 A.D.2d 687, 688, 759 N.Y.S.2d 105 (2d Dep't 2003).

"To hold a party liable under theories of negligent hiring, negligent retention, and negligent supervision, a plaintiff must establish that the party knew or should have known of the contractor's propensity for the conduct which caused the injury." Id. at 688, 759 N.Y.S.2d 105. Here, Plaintiff has presented copies of six letters that allegedly placed Defendant on notice that Advanced was not licensed, had not made the proper disclosures under the Truth–in–Storage Act, and was failing to produce Plaintiff's property. (Dkt. 241–1 at 13–18). The Court agrees with the Report and Recommendation that the fact that Advanced's license to transport household goods was suspended "raises an issue as to whether JPMC was negligent in its selection of Advanced to perform the removal and storage of plaintiff's property." (Dkt. 247 at 10–11).

There is also a question of fact for a jury as to whether Defendant was negligent in its supervision of Advanced in light of Defendant's failure to even respond to Plaintiff's concerns over Advanced's failure to turn over her property without imposing a fee. Plaintiff testified that when she requested her toolbox from Advanced and objected to paying $500 to release it, Advanced's representative Lisa telephoned JPMC's representative so Plaintiff could schedule a meeting. (Dkt. 234 at 86). When Plaintiff met with JPMC's representative and asked for the return of property held by Advanced, Plaintiff claims the representative said "it's done ... it's not my business anymore" and indicated that Plaintiff should "talk to the moving company directly." (Id. at 86–88). If Advanced's representative did respond to Plaintiff's requests by seeking the intervention of JPMC's representative, this raises a fact issue for the jury as to the supervisory nature of the relationship between JPMC and Advanced.

Defendant also objects to Plaintiff's Truth–in–Storage Act claims on the grounds that the eviction action was not unlawful...